Not fair: Ten years for consensual oral sex

Prosecutors are obligated to protect defendants from unfair sentences

MSNBC video

Man serving 10 years for consensual oral sex
June 6: A Georgia law designed to go after child sex predators has sparked a flood of support for a former honor student serving 10 years in jail. MSNBC's Susan Filan talks about the case.

Ten years in prison for receiving oral sex. That is Genarlow Wilson’s sentence.

When he was 17 years old and a high school senior, he received consensual oral sex from a 15-year-old, 10th-grade girl.

Everyone agreed, including the prosecutor and the girl herself, that she initiated the act.

It was all captured on video — the evidence used to convict him at trial. On the tape, police saw a 15-year-old perform oral sex on one partygoer, and after finishing with him, she turned and did the same to Wilson. Under Georgia law at the time, this was considered aggravated child molestation, a felony for teens less than three years apart to have oral sex. It carried with it a 10-year sentence, even though it was only a misdemeanor for those same teens to have sexual intercourse.

The D.A. offered Wilson — a football standout who was being recruited by some of nation’s top colleges, including Columbia and Brown — a plea deal: five years in prison and register as a sex offender. He turned it down.

The other students at the party took that deal and some of them are out of prison by now. Because Wilson thought he would be acquitted and did not want to be branded a child molester, he went to trial. The prosecutor blames Wilson for his sentence because none of the other defendants insisted on a trial; all the others “took their medicine.”

When I first heard about the case, I wasn’t too concerned. Wilson knew the risks, rolled the dice by going to trial and lost. But the more I think about his case and the more I read about his case, the more I think prosecutors have a duty to make sure they don’t take cases to trial that they can win, when the punishment doesn’t fit the crime. Prosecutors have discretion, and they have to use it fairly and wisely. So why do I write about this case now, two years into his sentence? For two reasons: for one, the Duke case has heightened my awareness that there can be injustice in the system, and as a prosecutor, I have an equal obligation to seek convictions as I do to make sure the convictions are fair and just and not wrongful. I must speak out against injustice in the same way I speak out against crime and in favor of law enforcement. The second reason I write about this now is because the Georgia legislature may be very close to righting this wrong with new legislation. To the extent they are, I applaud their efforts. To the extent they are not, I encourage their efforts.

After Wilson’s conviction and sentence, the legislature changed the statute realizing it was unfair. It now makes consensual oral sex between teens a misdemeanor. Too little, too late for Wilson, as the law does not apply retroactively. The legislature could change the law again, and there is presently a bipartisan bill that has been introduced to do just that.

Wilson’s attorney, B.J. Bernstein, a former prosecutor herself, is anxiously working with legislators to change the law to apply to Wilson.

The only other hope for Wilson, now 20, is for the prosecutor to set aside the sentence, and while the prosecutor didn’t return my phone calls, he told ESPN , that “legally, it’s still possible for us to set aside his sentence and give him a new sentence to a lesser charge. But it’s up to us. He has no control over it.” The reason they haven’t, according to ESPN, is they believe Wilson is guilty under the law and there is no room for mercy.

Is the prosecutor punishing Wilson for exercising his right to a trial?

He says he offered Wilson the same five-year plea deal after the jury convicted him but before he was sentenced and Wilson again turned it down. Wilson says he turned it down because the jury acquitted him of the rape charge and only convicted him of the aggravated child molestation. Why take the same five-year deal after being acquitted of rape?

I spoke with Wilson’s attorney, who’s working around the clock for free to right an injustice. She is frustrated because no one believes Wilson should be in prison for 10 years — not the prosecutors, Supreme Court, legislature, 15-year-old schoolmate, jury forewoman, or even the prison officials — but no one has done anything to get him out.

Her hope now lies with Senate Bill 37, which has been introduced and referred to the Judiciary Committee. Bernstein wants to see Wilson get out of jail soon, without the sex offender label, and go to college.

My hope is that the law applies to Wilson in the same way it applies to other consenting teens. If the legislature changed the law to spare other teens a harsh injustice, it should apply retroactively to Wilson.